Can You Get Reimbursement of Your Protest Costs? Maybe!

February 28, 2018

by Shelley Hall

In Protection Strategies, Inc., B-414573.3 (Nov 9, 2017), the GAO held that the protester was entitled to be reimbursed a portion of its protest costs because the agency unduly delayed taking corrective action in response to a sustained protest.

Initially the protester challenged the agency’s technical evaluation and the best value tradeoff, stating that it did not justify paying a price premium for the awardee to perform the requirement.

In any kind of tradeoff, there has to be clear documentation as to why the agency chose a higher priced offer over another.  There can be many reasons, such as warranty terms, extended life cycles, more efficiency in the proposed processes, etc.  Of course, the RFP has to clearly state how and what is being evaluated to make the best value decision.

The protester filed a supplemental protest stating that the best value determination unreasonably focused on the adjectival ratings and the agency improperly evaluated its past performance and the awardee’s proposal under a technical factor. Additionally, the protester challenged the agency’s failure to conduct a price realism evaluation with respect to the awardee’s proposed level of effort.

The agency took corrective action after filing an agency supplemental report and after the GAO case attorney held a conference call to discuss each party’s litigation risk.

The protester then requested that GAO recommend that the agency reimburse it for its protest costs. GAO held the protester was entitled to recover the costs associated with the challenge to the best value determination. GAO found this protest ground was clearly meritorious because the source selection authority did not discuss any of the advantages that the protester’s proposal provided, despite the fact that it was lower priced and acceptable.

On the other hand, GAO held that the other protest grounds were not clearly meritorious, in part, because the record required further development.

So what can be learned from this?  Well, first of all, if you feel your offer has been unfairly or incorrectly evaluated, by all means, file a protest.  Then if the agency does not take timely corrective action on sustained portions of the protest, you may be able to recover some of your protest costs.

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